May 22nd, 2014

Andrew S. Kowlowitz obtains dismissal of legal malpractice claim against a landlord-tenant attorney.

FKB’s client is a New York law firm with significant experience representing clients in landlord-tenant litigation. The matter arose from the defendant-attorney’s representation of the plaintiff (a landlord/housing cooperative) in connection with the prosecution of a non-payment summary proceeding against a commercial tenant, a Cuban restaurant. The landlord alleged that the tenant had defaulted on a commercial lease in failing to pay rent and certain taxes/charges. After proceeding with a brief one day trial (lasting only a few hours), the plaintiff (by its board of directors) freely entered into a provident settlement with the underlying defendant tenant, whereby the tenant agreed to pay rent arrears and the commercial lease terms were modified. The tenant subsequently defaulted on the settlement and failed to pay the additional rent, as stipulated.

Thereafter, the plaintiff commenced an action against its attorney in the New York County Supreme Court, alleging that it was “compelled” to settle the underlying litigation on unfavorable terms, based on the defendant-attorney’s failure to adequately prepare for trial and admit certain documents into evidence at the summary proceeding trial.

In response to the complaint, FKB file a pre-answer motion to dismiss pursuant to CPLR 3211(a)(1) and (7), seeking dismissal of the complaint on the grounds that documentary evidence conclusively disposed of the all claims. In its motion, FKB argued that documentary evidence, namely settlement documents, and the underlying trial transcript from the non-payment summary proceeding, provided a complete defense to the claims asserted. FKB also argued that plaintiff’s hindsight dissatisfaction with the underlying settlement was insufficient to plead and prove a claim for legal malpractice, and that the plaintiff could not prove that “but for” the acts of its attorney it would have achieved a more favorable result at trial.

Following oral argument, in a decision and Order dated May 13, 2014, Justice Donna Mills agreed with the legal arguments set forth in FKB’s motion to dismiss and granted the motion in its entirety. Justice Mills held that documentary evidence flatly contradicted the plaintiff’s factual allegations. The Court also held that the “plaintiff failed to plead specific factual allegations showing that, had it not settled, it would have obtained a more favorable outcome” in the underlying action. The Court found that Plaintiffs’ claims for legal malpractice, breach of fiduciary duty and breach of contract were insufficiently pled.

If you have any questions about this decision, or the defense of attorneys in general, please contact Andrew S. Kowlowitz.